A controversial amendment in Florida might get thrown out before the votes are even counted.
After months of arguing — both in court and to the public — that Amendment 1 is deliberating misleading, two pro-solar groups in Florida are filing to have the state Supreme Court reconsider the amendment’s language and to have the Secretary of State embargo the results of the vote until the court makes a decision, representatives said Wednesday.
According to a lawyer for the Florida Solar Energy Industries Association (FlaSEIA) and Floridians for Solar Choice, a consumer group, the move comes after “proof of the deception and potential misconduct” was revealed last month.
The “proof” was found in comments by a vice president at the conservative James Madison Institute. During a September address uncovered last month by the Center for Media and Democracy and the Energy and Policy Institute, Sal Nuzzo told fellow conservative policy wonks that solar’s popularity could be used in favor of utilities.
“The point I would make, maybe the takeaway, is as you guys look at policy in your state or constitutional ballot initiatives in your state, remember this: Solar polls very well,” Nuzzo told a crowd of conservative state policy wonks. He referred to it as “political jiu-jitsu” that the groups can use “to our benefit either in policy, in legislation, or in constitutional referendums.”
Nuzzo’s description fell in line with exactly what the Florida solar groups argued to the state Supreme Court in the spring: that utility interests were deliberating obfuscating the purpose of the amendment, which would change the state’s constitution, making it look like a pro-solar measure.
By a 4–3 margin in March, the court ruled the ballot language could go to voters, even while a dissenting judge called it “affirmatively misleading.” That means the solar groups only need one justice to reverse the opinion, and they are hoping Nuzzo’s comments tip the balance.
Under Florida law, it is legal to ask the court to reopen its advisory decisions on constitutional amendments.
“It is not only appropriate, it is our obligation… to bring this information to the court’s attention in an official manner,” said Ben Kuehne, a lawyer for the solar groups.
Kuehne called Amendment 1 “a secret scheme by the pro-utility coalition to mislead the public into believing the solar Amendment 1 is in fact a pro-solar amendment, when in truth it is nothing but a scheme to deceive.” The amendment would not make any immediate changes to Florida’s solar laws, but it could make it harder to lease solar panels and could lead to high fees on solar consumers.
The campaign for the amendment has been almost entirely supported by the utilities. In fact, all but $10 out of the more than $26 million pro-Amendment 1 campaign can be directly tied to utilities and affiliated conservative groups. In the last two weeks, Florida Light & Power and Duke Energy have given another $3 million to the amendment’s backer, Consumers for Smart Solar.
Consumers for Smart Solar was quick to disavow Nuzzo’s comments, even scrubbing the group’s website of references to the James Madison Institute.
Steve Smith, executive director for the Alliance for Clean Energy, said the response from Consumers for Smart Solar — that Nuzzo was speaking out of turn and did not have any connection to the amendment — was incredulous.
“It does not pass the laugh test that somehow or another there is not a close association between the utilities [and the James Madison Institute],” Smith said. He noted that Gulf Power and the institute share a number of board members.
While the court decides whether to revisit the decision, the Florida Secretary of State is being asked to withhold results of the vote, which is included on the November 8 ballot. A number of Floridians, who have already begun voting, have come forward to say they misunderstood the ballot measure.
Keuhne said that, for precedent, it would be better not to have a vote “rather than have a vote on a defective constitutional amendment.”
Correction: An earlier version of this story misattributed a quote to Ben Kuehne. It was from Steve Smith. It also incorrectly identified the overlapping boards. The utility with closest ties to JMI is Gulf Power.